The court affirmed that adverse inferences can be drawn from a party's failure to produce pivotal witness testimony and pertinent evidence, impacting the burden of proof in established property rights claims.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

ORAL JUDGMENT

1. This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 22.09.2012 passed in R.A.No.71 of 2008 by the learned Senior Civil Judge and A.C.J.M., Karkala.

2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants.

3. Brief facts, leading rise to the filing of this appeal are as follows:

4. The plaintiffs filed a suit against the defendants seeking for relief of a permanent injunction restraining the defendants from committing trespass into plaint 'A' schedule property from digging, and removing mud from the said property and from removing the compound wall situated in the said property. Also, for a mandatory injunction directing the defendants to restore plaint A schedule property to their original position, and for damages. It is the case of the plaintiffs that the plaintiffs are the absolute owners of the suit schedule properties. The road passes through plaint 'A' schedule properties, and through adjacent lands. The plaintiffs and others have been using the said road peacefully, continuously and without any interruption. The defendants have no manner of right over plaint 'A' schedule properties. The defendant No.2 is a member of Sooda Grama Panchayath. The defendants on 19.07.2005 started to dig the portion of plaint 'A' schedule properties by using JCB with the help of the labourers, and removed several loads of mud cashew nut trees and the other variety of trees from plaint 'A' schedule properties. The plaintiffs requested the defendants not to remove the mud from the plaint 'A' schedule properties. The defendants did not give any heed to the request made by the plaintiffs. The plaintiffs have suffered damages of ₹30,000/- and they restrict their claim to ₹10,000/-. Hence, a cause of action arose for the plaintiffs to file a suit for perpetual, mandatory injunction and damages. Accordingly, prays to decree the suit.

5. Defendant No.3 filed a written statement and the same was adopted by defendant Nos.1 and 2. It is contented that the plaintiffs are not in possession of the properties outside their compound and enclosures already existing, that the description of plaint 'A' schedule properties is incorrect. The road in question is a village road used by the public by custom since time immemorial, and all the public have got right over the same. It is broad and its width varying from 14 to 20 feet, it is being black topped after repair under various public schemes through the village Panchayath. The contractor has already carried out the repair of road and spreading the stones over the existing road. Thus the suit filed by the plaintiffs for the relief of a perpetual injunction is not maintainable. Hence, prays to dismiss the suit against the defendants.

6. The trial Court, based on the pleadings of the parties, framed the following issues:

(1) ಾಾ ಎ ಅನುಸೂ ಜೕನುಗಳ ತಮ ಾೕನ ಮತುಹೆ ಒಳಪ ರುತೆಂದು ಾ$ಯರು ಸುಾ&'ಸು(ಾ)ೆ*ೕ?

2) +ವ--.ೆಳ/ಣು1ಮುಖ3 ರೆ4ಂದ 5ಾ6ರಂಭೊಂಡು ಕ:ೊ;<ೆ ನ$ೆ ಾಾ ಆ>ಗಳ ಮತುಇತರ ಆ>ಗಳ ಮೂಲಕ Aಾದು Aೋಗುವ ಸುBಾರು 8 Cಂದ 10 ಅD ಅಗಲದ ಪE Fೋಟದ ನHಾIೆಯJ; K6>ರುವ ಮಣು1 ರೆಯನುL 2Fೇ ಪ6Kಾ$, 3Fೇ ಪ6Kಾ$ಯ ಸದಸ3FಾM ಆ*Nಾದ Oೕ:ೆ (ಾವPಗಳ ಆತQೆ ಶರSಾಗJಲ; ಅಂತ ೇಷ$ಂದ $:419-7-2005ರಂದು 3Fೇ ಪ6Kಾ$ಯ AೆಸCನJ; Vೆ.>.W.ಯ ಮೂಲಕ ಾಾ ಎ ಅನುಸೂ ೊತುಗಳ XಾಗವನುL ಅೆದು ಾಕಷು :ಾCಯಷು ಮಣ1ನುL (ೆೆದು .ೆYೆ$ದZ ಮರಗಳನುL ಕೂ[ಾ (ೆೆದ Hಾರಣ ತಮೆ 30,000-00 ರೂ. ನಷ ಾMರುತೆ, ಅದನುL ಪ6Kಾ$ಯರು ಕುಂದು BಾDರುವPದCಂದ ಅವರು ನಷ ಭCಸಲು ಭದ\)ಾMಾZ)ೆಂದು ಾ$ಯರು ಸುಾ&'ಸು(ಾ)ೆ*ೕ?

(3) ಪ6Kಾ$ಯರ ಆ)ೋ'ತ ಹಸ]ೇಪವನುL ತಮ ಾಾ ಆ>ಗಳ ಜೕನುಗಳ Oೕ:ೆ ಾ$ಯರು ಸುಾ&'ಸು(ಾ)ೆ*ೕ?

(4) ಾಾ ರೆ ^IಾಲಾMದುZ, ಅದರ ಅಗಲ 14 Cಂದ 20 ಅDಯಂ(ೆ ವ3(ಾ3ಸಾಗು(ಾ ಅದನುL ಪP)ಾತನ Hಾಲ$ಂದಲೂ ಾವ-ಜQಕರು ಉಪ`ೕMಸುKದುZ ಅದನುL 3Fೇ ಪ6Kಾ$ ತನL ಅHಾರ ಾ3'ಯJ;C5ೇC Bಾಡುವ ಅHಾರ Aೊಂ$ರುವPದCಂದ ಗುKೆಾರರವರ ಸದC ಅHಾರವನುL ಉಪ`ೕM> C5ೇC Bಾಡ:ಾMರುತೆ ಅಂತ 3Fೇ ಪ6Kಾ$ ಸುಾ&'ಸು(ಾFೆ*ೕ?

(5) ಈ ಾೆಯJ;BಾDರುವ ಹHೊ(ಾಯHೆ ಾ$ಯರು ಅಹ-)ೇ?

(6)